How the hell did Sam Bankman-Fried, who claims he has “close to nothing” in the bank, make $250 million bail? This week, citing public interest in the criminal case against the FTX founder, several media outlets pushed U.S. District Court Judge Lewis Kaplan to unseal the names of S.B.F.’s two mysterious backers, who, along with his parents, stepped up to co-sign his bond papers. But the judge rejected their bid on Friday, meaning we may never know which people or entities are responsible for guaranteeing S.B.F.’s cushy home confinement in Palo Alto.
I wasn’t that surprised, given Kaplan’s history. While the 78-year-old Clinton appointee is supposedly semi-retired, you’d hardly know it by looking at his busy docket. Indeed, Kaplan is not only overseeing the fraud case against Bankman-Fried; he’s also got his hands full with two lawsuits brought by writer E. Jean Carroll against Donald Trump over an alleged sexual assault, a Charles Harder-led libel suit over a New York Times story co-authored by Andrew Ross Sorkin, and a few copyright termination cases that will determine whether Disney maintains full control of its Avengers characters. In fact, I count at least 120 matters that were assigned (randomly or otherwise) to Kaplan just last year!
More intriguingly, Kaplan has made a habit of antagonizing the press with narrow interpretations of what the First Amendment actually protects. Last year, for instance, I reported how Kaplan forced entertainment journalist Adam Vary to turn over his communications and sit for a deposition in a civil suit against actor Kevin Spacey. Vary pointed to both the First Amendment as well as New York’s shield law in his bid to protect a source, but Kaplan turned him down, arguing, in effect, that Vary wasn’t a real journalist. It was a curious ruling, but it wasn’t the first time Kaplan raised bias as a reason to not extend legal privileges to the media. Back in 2010, he ordered a documentarian to comply with a subpoena and give Chevron more than 600 hours of raw footage taken for a documentary on oil pollution in Ecuador. In that same case, he also authorized wide-ranging discovery by taking a lot of anonymous and non-American speech outside First Amendment safeguards.
That’s not all. Kaplan is also the judge who once upset free speech advocates by issuing a controversial injunction that prevented websites from posting and linking to code that could theoretically be used to crack copyright protection measures on DVDs. He likewise turned heads by determining that the First Amendment ends at the plaza outside the courthouse, and nobody has the right to protest there. He later chaired a judicial committee that recommended changing docketing practices to better shield government cooperators from the press.
Of course, it’s possible that I’m overreading the good judge’s history—in 2010, he ordered the Justice Department to produce memos in a high-profile terrorism case, a big win for media transparency. Unsealing the names of Bankman-Fried’s financial patrons would also have been a win for transparency. But once S.B.F. protested the move, telling the judge that his security was in jeopardy, and his patrons’ privacy too, I figured this result was coming. It probably won’t be the last time that Kaplan disappoints those looking to learn more about this multi-billion dollar crypto scandal.
The People v. Alec Baldwin
I’ve been scrutinizing New Mexico’s court rules, and as best I can tell, there’s a pretty good possibility that the forthcoming criminal trial against Alec Baldwin, who is being charged with involuntary manslaughter over the on-set shooting death of a cinematographer, will be televised. It’s almost certain that Court TV, Law & Crime, and maybe even CNN will make a motion to include cameras in the courtroom at some point. Sure, the judge could rule that the spectacle would interfere with a fair trial. But maybe there are some folks in New Mexico who would appreciate the spotlight?
I imagine there will be plenty of viewers clamoring for this, too. The Baldwin case, after all, is already politically charged, pitting SNL’s outspoken Trump impersonator against an ambitious district attorney (a Democrat, for what it’s worth). For starters, there’s a lot of skepticism in the legal community about whether D.A. Mary Carmack-Altwies can secure a conviction. Proving that Baldwin was reckless with the gun, and committed some careless act that degraded safety, won’t be easy. It’ll have to be convincing for a dozen jurors, too.
And the trial could have real, dazzling star power. Assuming there’s no plea deal—always a possibility given the firearm enhancement charge that carries a mandatory five-year prison sentence—who might Baldwin call to the witness stand to testify about gun safety protocols on movie sets? I’m not sure, but I bet Baldwin’s many friends in the entertainment community would be happy to provide their support.
After the charges were announced, SAG-AFTRA put out a statement that it’s not an actor’s duty to ensure the safety of a gun. Based on his early (and potentially misguided) media blitz, that seems to be Baldwin’s legal defense, too. There’s probably a jury consultant waiting to be paid to research how New Mexico citizens would respond to testimony from Hollywood stars.
Biden v. Hollywood
Among the other big issues on its docket next term, the Supreme Court is preparing to decide the future of comedy. Yes, I’m serious, and so is the Biden administration, which on Thursday explained the nature of parody to the high court, telling Justice John Roberts et al. in an amicus brief that humor isn’t an automatic excuse to violate trademark law.
This particular case—Jack Daniels Properties v. VIP Products—really deserves more attention. Sure, the dispute seems silly: Someone made a chewable dog toy that looks like the bottle design for a famous whiskey brand, and it’s now at the Supreme Court! But actually, this ridiculous controversy presents an opportunity for the justices to decide once and for all whether artistic intentions matter when using someone else’s trademark. As the Motion Picture Association notes in its own brief, “Creators have integrated brands into their works to memorable effect.” The M.P.A. goes on to highlight examples including the McDonald’s Quarter-Pounder with Cheese in Pulp Fiction, Baldwin’s Rolex watch in Glengarry Glen Ross, and ubiquitous ’80s brands in Netflix’s Stranger Things.
The key to really understanding how the Jack Daniels case could shake things up is the famous legal precedent known as the “Rogers Test,” which derived from a 1989 opinion from the Second Circuit Court of Appeals. That decision concerned a lawsuit that Ginger Rogers brought against Federico Fellini’s movie, Ginger and Fred, that turned on whether the use of Ginger’s name had any artistic relevance. In such cases, the judges ruled, unless there’s something explicitly misleading about how a trademark is used, the First Amendment allows it.
Over the past three decades, the Rogers Test has been employed to excuse all sorts of trademark hijacking in popular culture. It’s precisely for this reason that the M.P.A. filed its brief this week, even as the trade group acknowledged that the Rogers Test isn’t the best way to adjudicate chewable dog toys. (The case has also drawn amicus briefs from Nike, Levi’s, Campbell Soup Company, and the Chamber of Commerce, which opined that the First Amendment doesn’t protect speech that confuses and misleads consumers. Sorry, Elon.)
But guess what? Biden’s D.O.J. wants to limit the Rogers Test to merely titles of expressive works, and maybe not even that, showcasing some rare disagreement between a Democratic administration and Hollywood. Biden’s solicitor general attacks the Rogers Test as a “mistaken” First Amendment precedent that’s not found in any statute and makes it “nearly impossible” for any trademark holder to prevail in an infringement suit. The administration would prefer a test that assesses whether there’s any likelihood of consumer confusion—a prospective analysis that sets up the need for consumer surveys and dueling arguments about brand strength. That’ll certainly make this sort of litigation more expensive for producers of movies, television shows, and coming soon, attractions in the metaverse. It could also lead to more self-censorship for those who wish to avoid the hassle of a court battle.